TMI Blog1955 (1) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... lly in charge of that iron safe kept at the Mission Row Extension office for deposit of the cash sent from the Lake Depot Office and as such was entrusted with the keys of that safe used to keep the cash along with the challans made out by the Lake Depot Office for deposit of this money in the Reserve Bank on the following day. On 7-2-1953, Suhrid Bose sent a sum of ₹ 6752/9/6 of which ₹ 802/9/6 consisted of coins, ₹ 3045/- of one rupee notes and ₹ 2905 of notes of the denomination of ₹ 2/-, ₹ 5/- and ₹ 10/-. This money was sent along with two sets of challans in triplicate, one of the challans being for coins and the other for notes, through Anil Krishna Ghose, a Depot Cashier of the Lake Depot who was accompanied by Kalidas Sarkar, a peon attached to the Lake Depot Office in an armed cash van. The money was made over by Anil Krishna Ghosh to the appellant who received and kept the amount in the iron safe in the presence of Anil Krishna Ghose and the peon. It was to be deposited on 9-2-1953 in the Reserve Bank as the 8th February was a Sunday. The amount, however, could not be deposited in the Reserve Bank on the 9th as the State van di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Police at Lalbazar and a little later Sasanka Mohan Banerjee, p.w. 17, an Inspector of the Detective Department, Lalbazar, who was deputed by the Dy. Commissioner to investigate the matter, arrived along with T. M. Chakravarty, p.w. 15, another Inspector of Police. They inspected the iron safe in the presence of Suhrid Bose, A. C. Mukherjee, the appellant and others. The appellant was asked to open the safe and he did so with the keys in his custody, the safe having double locks. After opening the safe the appellant brought out two sets of challans and the remaining cash amounting to ₹ 3847/9/6 along with the duplicate keys of the iron safe which were lying inside the safe. The police officer found nothing to indicate tampering with the safe. During the investigation the safe was also examined by p.w. 8 Bhabatosh Chatterjee, Officer of Messrs. Roy Co., of 100 Harrison Road, Calcutta, which had supplied the safe in question to the Mission Row Office. He also found no signs of tampering with the safe. The appellant was arrested on 3-4-1953 and after investigation he was sent up in charge sheet. On these facts he was charged with having committed criminal bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes of ₹ 2/-, ₹ 5/- and ₹ 10/-. The evidence against the appellant is entirely circumstantial for no one actually saw him taking out these notes. The inference about his guilt arises mainly from the fact that he was in charge of the keys and as such he alone had access to the safe so that if from the safe this amount disappeared it is he and he alone who could have been responsible for its disappearance. As against this Mr. Dutt on behalf of the appellant has argued that it is in evidence that the keys of the safe at least occasionally were with persons other than the appellant and, before this particular safe was allotted for the deposit of the cash from the Lake Depot it was actually being used by the Mission Row Office so that at that time also other people handled the keys. He has next argued that the prosecution did not adduce evidence of the two duplicates being inside the safe itself till 19-9-1953 when Akshoy Kumar Das, P.W. 9 who was an accountant of the State Transport Department of the Belgharia office and who accompanied Suhrid, the appellant and others to the Mission Row Office from the Belgbaria office was examined. He states in this examination-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set. There is therefore no reason to disbelieve this evidence about the finding of the duplicate keys inside the safe although it appears that it was not till Akshoy Das came into the box that the prosecution adduced any evidence about the find of the duplicates inside the safe. 6. The other contention of Mr. Dutt is that as other people had occasions to handle the keys it was possible that casts or photographs of those keys were taken by them or by others and the money taken out by means of duplicates prepared from the casts or photographs of the keys. Although it might be possible we do not think it at all probable. Till the safe was actually allotted to the Lake Depot no body had any reasons to take the cast of the keys because it was unknown then to what use it might ultimately be put. Again when the keys were in the hands of the head cashier of the Mission Row Office it is hardly possible that he would allow casts to be taken of these keys. That leaves the only other alternative that the accused who was in charge of those keys and who alone had the opportunity of taking out part of the money deposited in the safe by himself did actually take out this money. In this conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant Mr. Dutt raises certain points of law. The first is that although the appellant was prosecuted under Section 409, Penal Code, it is really an offence covered by Section 5(1)(c). of the Prevention of Corruption Act (Act 2 of 1947) and is punishable under Section 5(2) of that Act. Section 6 requires sanction for prosecution and as the appellant was prosecuted without any sanction the prosecution is bad. Section 6 reads as follows : No Court shall take cognizance of an offence punishable under Section 161 or Section 165, Penal Code or under Sub-section (2) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction. (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, or some higher authority of the State Government. (c) In the case of any other person, of the authority competent to remove him from his office. 8. As the appellant was not prosecuted under Section 5(2), Section 6 is not applicable in terms to the present, prosecution but Mr. Dutt's contention is that it is not op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s criminal misconduct in the discharge of official duty. It runs as follows: (1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty, (a) If the habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161, Penal Code. (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to 'whom he is subordinate, or from any person whom he knows to be interested in of related to the person so concerned; or (c) if he dishonestly or fraudulently misappropriates or otherwise Converts for his own use any property entrusted to him or under his control as a public se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumptions, a presumption under Section 4(1) and a presumption again under Section 5(3). The presumption under Section 4(1) is only in connection with an offence punishable under Section 161 or Section 165, Penal Code but the presumption under Section 5(3) is in respect of all kinds of offences which come within the definition of criminal misconduct in the discharge of official duty, and the rule laid down in this subsection is that where an accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or properties disproportionate to his known source of income the Court shall on proof of such possession, unless the contrary is proved, presume that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based on such presumption. Another important departure from the ordinary, criminal law is the provisions of Section 7 whereby an accused person, if he chooses to examine himself as a witness for the defence may do so. Another thing worth noticing is that the punishment for an offence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n; but as Section 6 stands it would be only when there is prosecution under this Act, and not otherwise. Section 26 of the General Clauses Act runs as follows : Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. The choice lies with the prosecutor as to whether the offender should be prosecuted and punished under one or other of the two enactments under both of which the act or omission complained of might fall. This choice of the prosecutor is always there and if the authorities in any particular case decide on a prosecution under the Prevention of Corruption Act then and then only the question of sanction would arise and not otherwise. Section 10 of the West Bengal Criminal Law Amendment Act to which Mr. Dutt referred in this connection, by providing that the provisions of the Prevention of Corruption Act shall apply to trials under the Act i.e., to trials by Special Judges created by this Act, does not by means extend the scope of Section 6 of the Prevention of Corruption ..... X X X X Extracts X X X X X X X X Extracts X X X X
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